The second highest court?

Another potentially important aspect of the decision of the House of Lords in SSHD v AF & Ors [2009] UKHL 28 is the apparent ceding of authority to the European Court of Human Rights in Strasbourg.

Under section 2(1) of the Human Rights Act 1998, domestic courts are merely required “take into account” the decisions of the Strasbourg court. However, he we had a crucial decision on the balance between liberty and security and the components of a fair process which has already been the subject of a decision of the House or Lords. Lord Hoffmann, often seen as one of the most forthright and respected law lords was known to disagree with Strasbourg’s view. Would he stand his ground and affirm the right for domestic autonomy or would he yield.

He yielded – saying: "I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit … the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so."

If the highest court in the land was going to make a stand for its autonomy, here was surely the place to do it. But now it seems reconciled to accept that it is simply an inferior court to the Strasbourg one, even though there is no provision in law for this.